The Kelly Surprise: Attorney General Concedes That Amendment of Compassionate Use Act Was Unconstitutional

May 29, 2013 by Arkady Bukh

Surprising news in California medical marijuana law: the California Attorney General has conceded that the legislature’s amendment of the 1996 Compassionate Use Act was unconstitutional, meaning that criminal defendants may soon be able to regain the ability to put on a trial defense under the Compassionate Use Act even if the amount of medical marijuana they possess exceeds the 8-ounce/6-mature-plant presumptive limits spelled out under the law enacted by the California legislature in 2003.

The AG’s concession is described in its brief filed October 14 with the California Supreme Court in People v. Kelly, S164830. The basic argument in Kelly looked like it was going to be about whether the legislature, in enacting the Medical Marijuana Program in 2003, could constitutionally have imposed quantity limits on the affirmative defense for medical marijuana users created by voters through the Compassionate Use Act in 1996.

Instead, the AG isn’t even fighting the constitutional point. Its brief comes right out and states that it “does not contest the Court of Appeal’s conclusion that section 11362.77 [the section of the Health and Safety Code that sets the quantity limits] is unconstitutionally amendatory insofar as it limits an in-court CUA defense.”

The AG’s argument, then, is simply about the fact that the court of appeal could have created a more nuanced remedy to this constitutional problem by essentially making it clear that the MMP and the CUA operate as two distinct set of protections, one with quantity limits and one without. Under the CUA, the relevant legal standard is not any specific quantity cutoff but the more flexible language of People v. Trippet: a quantity “reasonably related to the patient’s current medical needs.”

Curiously, back in August, the AG released medical marijuana “guidelines” that did not discuss the idea that a medical marijuana patient could exceed the MMP quantity limits but still put on a defense under the Compassionate Use Act. In my opinion, the AG’s reasonable position in Kelly will probably fix that problem, and will produce a structure that is both workable and coherent. The guidelines will provide clarity and security to individuals who want to be sure that they are staying within defined limits, while the Compassionate Use Act and the Trippet test will (if the Cal Supremes agree, and if they write an opinion that is sufficiently clear that trial courts and prosecutors can’t wriggle out of it) continue to provide a “reasonableness” standard to be applied in situations where the quantity limits don’t make sense for particular individuals.